Ok--here's the situation.
Tract A is surveyed. ROW points are monumented on the S line of an E/W road 2 rods south of the N line of the NW 1/4, said N line also being the legal N line of tract A. (The N. line of the NW 1/4 is properly run out.)
Tract B is subsequently surveyed which East line is 60 ft west of the W line of tract A to accomodate a public road running south. Note: the N. line of the NW 1/4 is not run out for tract B. The surveyor for tract B finds the ROW monuments for tract A, double centers to the West and sets the ROW corners for tract B.
The south line of B is established in similar fashion using double centering from found monuments of A to establish the south line of B.
Skip a few years . . .
A subdivision is created between the West line of B and the West line of the NW 1/4. Lots are created. People buy the lots and houses are built.
Skip a few years . .
Time to create an "administrative subdivision" in tract B. The North and South lines of tract B are both found to be one foot short. The E/W distance of the North line of the subdivision West of tract B is found to be gnat's ass. The monument marking the SE cor of the east most lot of said subdivision is found to be in line with the monuments marking the west line of tract B.
Among points of concern: the NW ROW corner of tract B is found to be not only one foot short E/W but also one foot too far South of the two rod ROW line. The North line of the lots in the subdivision West had been run from said errant monument to a monument set 33 feet South of the northwest corner of the NW 1/4.
Back to the administrative subdivision of tract B. The office is called and informed of the E/W shortage of tract B. Boss brings up JR/SR rights. Tract B was created before the subdivision to the West. But, to give tract B its full due would be to short the east most lot of the subdivision West by one foot. Boss doesn't want to do that.
He says to "prorate" the North line of the east most lot of the subdivision west with the North line of tract B (both lines are roughly the same length) and set new monuments on the correct ROW (proper section corners have been dug up and tied in). He says to recreate the west line of B (and thus by association the East line of the subdivision west of tract B) by running a line parallel and equidistant to B's east line . The result: the E/W dimension of B is now roughly about 0.5 ft short as is the E/W dimension of the east most lot of the subd west. The original monuments were left in the ground.
Party Chief, LS (but not the one signing the paycheck)
What do you think??
It is really too early to respond and I haven't had my coffee yet. Situations like this need to be sketched out before one can rationally comment.
Having said that here I go, the last paragraph I believe (I can't read the original post in this format) said that there were original monuments? Proration is a procedure of last resort. If there are original monuments that define the senior conveyance I would certainly hold them.
Off hand, the only time I would prorate would be in the case of simultaneous conveyances conveyances such as subdivisions where all original interior monumentation was lost and where each lot has equal standing.
I think he is wrong. The correct line is where Tract B was originally surveyed. That the surveyor was sloppy is irrelevant. That the distance is short is irrelevant. That corner has been relied upon and is how the property was transacted. But that is in this state. Some states may have different case law. What state is it in.
test
Merlin
You can click the quote message link at the top of the message box when replying and see the entire message, then just highlight andclear it before you send your post:-)
Merlin
Roadhand says:You can click the quote message link at the top of the message box when replying and see the entire message, then just highlight andclear it before you send your post:-)
Yeah, but what if I am replying to what you are saying to Merlin and I want to show you where he said "It is really too early to respond and I haven't had my coffee yet."
Right now the only work around that I know of is to open the original thread in a second window, then I can toggle back and forth to copy and paste from that thread using different colors to distinguish the posters.
😉
